Kerala High Court
Hithin vs State Of Kerala on 13 August, 2009
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17828 of 2009(Q)
1. HITHIN, S/O.SASI, MAMMIKKANDATHIL HOUSE,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY CHIEF
... Respondent
2. SECRETARY TO GOVERNMENT,
For Respondent :SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I.
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :13/08/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
===========================
Crl.M.C.877/2009 &
W.P.(C)17828 OF 2009
===========================
Dated this the 13th day of August,2009
ORDER
Can a Magistrate under section 156(3)of Code of Criminal Procedure direct the Investigating Officer to incorporate a particular offence and investigate? This is the question to be settled.
2. Petitioner in Crl.M.C.877/2009 is the accused in Crime No.570/2008 of Varapuzha Police Station. Petitioner in W.P.(C) 17828/2009 is the de facto complainant therein. Crl.M.C. 877/2009 is filed under section 482 of the Code of Criminal Procedure to quash Annexure B order passed by the Judicial First Class Magistrate, North Paravur under section 156(3) of the Code of Criminal Procedure, in a petition filed by the Writ petitioner. The learned Magistrate directed the Investigating Officer to incorporate the provisions of SC/ST (Prevention of Atrocities) Act, (hereinafter referred to as the Act,) and investigate the case finding that the allegations in the First Information Statement, the wound certificate as well as the statement of the doctor are sufficient to attract Crl.M.C.877/09 & W.P.(C)17828/09 2 commission of an offence under section 3(1)(iii) of the Act. Writ Petition is filed by the de facto complainant under Article 226 of the Constitution of India for a writ of mandamus to entrust the investigation of the case to an independent investigating agency like the Central Bureau of Investigation.
3. Learned senior counsel appearing for the petitioner in Crl.M.C.877/2009, learned counsel appearing for the Writ Petitioner and the learned Public Prosecutor were heard.
4. Crime 570/2008 of Varapuzha Police Station was registered for the offence under section 294(b) and 323 of Indian Penal Code against the petitioner a Sub Inspector of Police alleging that while the Writ Petitioner was in custody the said offences were committed. When the case is under investigation, the de facto complainant filed Annexure A petition under section 156(3) of Code of Criminal Procedure contending that proper investigation is not being carried out and eventhough offences under the Act are involved they are not incorporated and investigated. It is also contended that even the proper offences under the Indian Penal code were not incorporated and investigated. Armed with the decision of the Apex Court in Sakiri Vasu v. State of U.P. (2008(1) KLT 724) the de facto complainant approached the learned Magistrate. Under Crl.M.C.877/09 & W.P.(C)17828/09 3 Annexure B order learned Magistrate found that on perusing the case diary it is seen that the de facto complainant has stated that he has been abused by calling his caste name in the presence of others and as petitioner was taken into custody, there is possibility of knowing his caste and Case Diary reveals that accused was a suspected accused in another theft case and he was questioned therein and therefore accused has knowledge about the caste of the complainant and in such circumstance commission of an offence under section 3 (1)(iii) of Act is attracted and directed the Investigating Officer to incorporate the said offence and investigate the case and file a report within fifteen days.
5. Learned senior counsel argued that Magistrate has no power to direct the Investigating Officer to incorporate a particular offence and to investigate and submit a final report as investigation is within the exclusive jurisdiction of the police and Magistrate has no right to interfere with the investigation. It is argued that even if Magistrate is not satisfied with the findings in the final report, the Magistrate can only direct further investigation when the final report is submitted, under section 156(3) and cannot direct the officer in charge of the Police Station to file a report under section 170 of Crl.M.C.877/09 & W.P.(C)17828/09 4 the Code for a particular offence. It is argued that when a Magistrate cannot direct the Police Officer to file a final report on a particular offence, the direction in Annexure B order to incorporate the offence under the Act is illegal and is to be quashed. Learned senior counsel also pointed out that the decision of the Apex Court in Sakiri Vasu's case (supra) cannot be interpreted in such a manner to widen the powers of the Magistrate, than what is available under the Code and the said decision only enables the Magistrate to give directions for proper investigation of the case or to monitor the investigation and it does not empower the Magistrate to direct incorporation of a particular offence or to investigate that offence and therefore the order is bad. Reliance was placed on the decision of the Apex Court in Shariff Ahmed v. State (2009 (2) KLD 207) where their Lordships declared that Magistrate has no power to direct the police to incorporate a particular offence and to investigate the case and file a report. Learned senior counsel relying on the decision of this court in E.K.Nayanar v. M.A.Kuttappan (1997(1) KLT
512) submitted that when the alleged offence was allegedly committed inside the police station and not in public view, an offence under section 3(1)(iii) of the Act is not Crl.M.C.877/09 & W.P.(C)17828/09 5 attracted and the finding to the contrary in Annexure B order is unsustainable.
6. Learned counsel appearing for the first respondent relying on paragraphs 11,15,17,18 and 24 of the decision in Sakiri Vasu's case (supra) argued that power of the Magistrate under section 156(3) is wide enough to give any direction for proper investigation or monitoring of the case being investigated by the Police and it includes the power to direct investigation of all the offences. Relying on the decision it was argued that when any power is expressly granted by the statute to an authority, it includes in the grant, by implication, every power and every control the denial of which would render the grant ineffective and therefore the Magistrate has jurisdiction to grant sufficient directions in the course of investigation. Learned counsel also argued that eventhough learned Magistrate should have found that offences other than the one being investigated, under the Indian Penal Code are also attracted and should be investigated, it was not stated in Annexure B order and to that extent the order is not correct. It was also submitted that on the complaint the offences attracted is not only section 3(1)
(iii) alone but other offences also and in such circumstance sufficient directions may be issued. Learned Crl.M.C.877/09 & W.P.(C)17828/09 6 counsel also submitted that the case is not being properly investigated and it is for that reason the Writ Petition is filed and though petitioner is not entitled to request to appoint a particular agency for investigation, he is entitled to get the case investigated properly and therefore a senior police officer may be directed to investigate the case.
7. Learned Public Prosecutor submitted that the case was being investigated by the Dy.Superintendent of Police (Rural), Aluva and subsequently as apprehension was expressed by the members of a Committee constituted for the investigation of SC/ST offences, Deputy Superintendent of Police(Rural), Aluva has requested to relieve him from investigating the case and thereafter Superintendent of Police has directed Deputy Superintendent of Police Crime Detachment, Ernakulam (Rural), Aluva to investigate the case and therefore there is no necessity to change the Investigating Officer as sought for.
8. The Apex Court in Sakiri Vasu's case (supra) declared that under section 156(3) of the Code of Criminal Procedure the concerned Magistrate has jurisdiction to give necessary direction for investigation as well as to monitor the investigation. By the said decision powers of the Magistrate available under the Code is not widened. Even Crl.M.C.877/09 & W.P.(C)17828/09 7 after investigation and submission of a final report under section 173(2) of Code of Criminal Procedure, while considering the question whether cognizance under section 190 of Code of Criminal Procedure is to be taken or not, Magistrate can only direct a further investigation under section 156(3) and cannot compel the officer in charge of the police to submit a report, under section 170 for a particular offence. If at that stage Magistrate is not competent to direct the investigating officer to incorporate any particular offence and submit a final report, Magistrate cannot give such a direction even at the investigation stage. If the Magistrate is of the view that the investigation is not proper, on consideration of the final report, he can only direct a further investigation under section 156(3). If on such further investigation and submission of a final report under section 173(2), Magistrate is not satisfied with the finding with regard to the commission of the offence in the final report and the materials available in the final report disclose commission of an offence or an additional offence or offence than what is stated in the final report, Magistrate is empowered to take cognizance of the offence or other offences on the said final report. But Magistrate cannot direct the Investigating Officer to file Crl.M.C.877/09 & W.P.(C)17828/09 8 a further final report under section 170, showing commission of a particular offence. This is the settled legal position.
9. If that be the case even by exercising the power of monitoring or supervising the investigation as declared by the Apex Court in Sakiri Vasu's case, a Magistrate cannot exercise a power, which is not otherwise available to him under the Code. If the Magistrate cannot direct the Investigating Officer to submit a final report on a particular offence, Magistrate cannot direct the Investigating Officer to incorporate a particular offence and investigate that offence. But upon a petition filed under section 156(3), while monitoring or supervising the investigation, a Magistrate finds that a particular aspect is not being investigated, definitely the Magistrate can give a direction to investigate that aspect also. But that power will not extend to empowering the Magistrate to direct the investigating officer to incorporate a particular offence and to investigate it. It is to be born in mind that as observed in King Emperor v. Khwaja Nazir Ahmad (1944 LR 1A 203) the function of the judiciary and the police though complementary are not overlapping and investigation is within the exclusive province of the police. Under the Code Magistrate cannot exercise his Crl.M.C.877/09 & W.P.(C)17828/09 9 jurisdiction with regard to the investigation at that stage, except to the limited extent of supervising or monitoring the investigation as declared in Sakiri Vasu's case.
10. The position is now settled by the Supreme Court in Shariff Ahamed and others case (supra). It was a case where the Metropolitan Magistrate directed the Investigating Officer to add the offence under section 307 of Indian Penal Code and investigate the matter properly. It was held:-
"This Court held in the case of J.A.C. Saldanha (supra) that there is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. It has been held as follows:
"Investigation of an offence is the field exclusively reserved by the executive through the police department, the superintendence over which vests in the State Government. It is Crl.M.C.877/09 & W.P.(C)17828/09 10 the bounden duty of the executive to investigate, if an offence is alleged, and bring the offender to book. Once it investigates and finds an offence having been committed, it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under section 190 of the Code of Criminal Procedure, its duty comes to an end. On a cognizance of the offence being taken by the Court, the police function of investigation comes to an end subject to the provision contained in Section 173(8), then commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if Crl.M.C.877/09 & W.P.(C)17828/09 11 so, whether by the person or persons charged with the crime.
In the circumstances, the
judgment and order of the High
Court was set aside by this
Court.
In the instant case the
investigation is in progress. It
is not necessary for us to
comment on the tentative view of
the investigating agency. It is
the statutory duty of the
investigating agency to fully
investigate the matter and then
submit a report to the concerned
Magistrate. The Magistrate will
thereafter proceed to pass
appropriate order in accordance
with law. It was not appropriate
for the High Court in these
circumstances to issue a
direction that the case should
not only be investigated, but a
charge sheet must be submitted.
Crl.M.C.877/09 & W.P.(C)17828/09 12
In our view the High Court
exceeded its jurisdiction in
making this direction which
deserves to be set aside. While
it is open to the High Court, in
appropriate cases, to give
directions for prompt
investigation etc. the High Court
cannot direct the investigating
agency to submit a report that is
in accord with its views as that
would amount to unwarranted
interference with the
investigation of the vase by
inhibiting the exercise of
statutory power by the
investigating agency."
In view of what is stated in M.C.
Abraham's case (supra) the order
of High Court is clearly
unsustainable and is set aside.
We make it clear that we have not
expressed any opinion on the
Crl.M.C.877/09 & W.P.(C)17828/09 13 merits of the case. It is brought to our notice by learned counsel for the State-respondent that the charge sheet has already been filed under section 307 IPC.
But that was in compliance with
this Court's order. It is open
to the Investigating Officer to
file the charge sheet afresh on
the basis of the material
collected during investigation."
Learned Magistrate is therefore not justified in directing
the Magistrate to incorporate an offence under the Act and
investigate that offence, as directed in Annexure B
order. So also it is not for the Magistrate at this stage
to decide what all offences are made out. Annexure B
order can only be quashed. But that does not mean that
the Magistrate is not entitled to monitor or supervise the investigation.
11. Then the question is whether the investigating officer or the investigating agency is to be changed as sought for in W.P(C) 17828/2009. Learned Public Prosecutor made available the Case Diary which reveals that as per order D1(a)676/09 ER dated 16.1.2009, the case records were Crl.M.C.877/09 & W.P.(C)17828/09 14 transmitted by the Dy.Sp. Sri.Unnirajan, Aluva (Rural) to Dy.SP. Crime Detachment, Ernakulam (Rural, Aluva pursuant to the direction of the Superintendent of Police to investigate the case by the Dy.SP, Crime Detachment, Ernakulam (Rural), Aluva. In such circumstance, I find no necessity to change the investigating Officer or investigating agency as sought for in W.P.(C) 17828/2009.
Crl.M.C.877/2009 is allowed. Annexure B order is quashed. It is made clear that learned Magistrate can supervise or monitor the investigation as declared by the Apex Court in Sakiri Vasu's case. W.P.(C) 17828/2009 is disposed holding that in view of the entrustment of the investigation with the Deputy Superintendent of Police (Crime Detachment)Ernakulam (Rural), no other direction is warranted.
M.SASIDHARAN NAMBIAR JUDGE tpl/-
M.SASIDHARAN NAMBIAR, J.
--------------------------------
CRL.M.C.NO.877/2009 & W.P.(C).NO.17828 /2009
--------------------------------
ORDER 13TH AUGUST,2009